How to Set Aside (Cancel) an Order in a Divorce Case

To ask a court to set aside (cancel) a court order or judgment, you have to file a “request for order to set aside,” sometimes called a “motion to set aside” or “motion to vacate.” The terms “set aside” or “vacate” a court order basically mean to “cancel” or undo that order to start over on a particular issue. When you ask the judge to cancel a court order, the judge will make the decision to cancel it (or not) based on your request, the other side’s response, and the law.

Keep in mind that we will use the word “order” to mean both “court orders” and “judgments.”

When can I file a request to set aside or cancel an order?

A request to set aside an order is complicated. And the law only allows a judge to set aside to set aside (cancel) a judgment or court order in very few situations. You have to tell the judge what law applies to the facts of your case, and why you think your situation fits the law.

If you do not have a good legal reason to file a request for order to set aside and you do it anyway, the judge may order you to pay the other party’s ’s lawyer fees and costs to respond to your request for order. So make sure that you understand your situation and the law before you file a request for order to set aside a court order.

This section will give you general information only. Talk to a lawyer if you need advice related to your situation. If you have the kind of case that your court’s self-help center or family law facilitator helps with, you may be able to get help there. You may also be able to hire a limited-scope lawyer to help you with just certain parts of your case while you handle the rest.

Important: Keep in mind that a request for order to set aside is not the same as an appeal or a request for reconsideration. Those 2 procedures have different legal requirements and deadlines. It is important you do not confuse them because you may miss a deadline if you use the wrong procedure for your situation.

If the other side in your case has filed a request to set aside (cancel) an order and you want to oppose it, you will find instructions to guide you on the pages that discuss the steps for each type of request.

Legal Reasons to Set Aside (Cancel) a Judgment or Order

Here are the most common legal reasons to ask a judge to set aside (cancel) a judgment or another type of court order:

Misunderstood the facts or the law and your misunderstanding was reasonable and justifiable (and more than just not knowing the law), or

Were unexpectedly surprised or failed to act in time because you relied on someone else acting, or you had the wrong information, or you were unable to understand what to do.

For these situations, and other similar ones, you must have had a valid reason for your actions (or inaction).

There is no clear-cut description of what a judge will agree is a valid reason to set aside an order in these cases. In your paperwork, you will have to (1) describe, as clearly as possible, why you did not answer the papers in time, (2) explain why you had a good reason or excuse, and (3) why you should be allowed to respond to the original petition or other document and participate in your case.

The fact that you are self-represented is not an excuse for making a mistake.

Deadline to file the request for order:

The deadline for filing a request for order to set aside under this law is 6 months from the date the order was made against you. Deadlines can be tricky to figure out so make sure you get help to find out the exact deadline for your situation.

You have 6 months to file the request for order, BUT you should do it as soon as you realize the mistake. The law says you must do it within a reasonable time, which means as soon as is reasonable once you realize that an order was made. Do not wait to the end of the 6 months if you found out much sooner that the order was made!

You must file AND serve the request for order within these 6 months. Look at the instructions below regarding “service."

You did not receive notice of the summons and petition in time to file a response or act properly. This is for default judgments only (a default judgment is made when the respondent in a case does not respond to the petition and “defaults”). The law discussing this is Code of Civil Procedure section 473.5.

This means that you did not actually receive or see a copy of the summons and petition. For example, if the summons and petition were served by posting the papers at the courthouse or by publishing them in a newspaper, it is possible you never saw the documents or knew that they were filed.

In your request to the court, you must explain that the fact you did not receive notice of the summons and petition was NOT due to your own inexcusable neglect or because you avoided getting served.

Deadline to file the request for order

You must file a request for order to set aside under this law within a reasonable time—BUT there are strict deadlines:

You must file the request for order to set aside within 2 years after the date when the default judgment was entered against you.

The deadline is sooner if the court files show that you were served with a written notice of entry of that default judgment. In this case, you must file the request to set aside within 180 days from the date you were served that notice.

Although you may have up to 2 years, you have to act within a reasonable time. Do not wait to file once you find out about the judgment. Act quickly.

You must file AND serve the request for order within this time period. Look at the instructions below regarding “service."

Here is a brief description of the legal reasons for this type of request to set aside and the time limit to file your request under each reason:

Actual fraud: where one spouse or partner was kept from having information or from participating in the case through fraud. You must file the request for order to set aside within a year after you discover, or should have discovered, the fraud.

Perjury: where one spouse or partner committed perjury (made false statements on purpose) in the preliminary, final, or waiver of financial declarations of disclosure or income and expense statements. You must file the request for order to set aside within 1 year after you discover, or should have discovered, the perjury.

Duress: where one spouse or partner was kept from participating because of duress (for example, threats of violence or harsh treatment meant to make you do something you don’t want to do). You must file the request for order to set aside within 2 years after the entry of judgment.

Mental incapacity: where one spouse or partner was kept from participating because of mental incapacity. The request for order to set aside must be brought within 2 years after the entry of judgment.

Failure to comply with the requirements of financial disclosure: where one spouse or partner discovers the other did not comply with the disclosure requirements. You must file the request for order to set aside within 1 year after you discover, or should have discovered, the failure to comply with the financial disclosures.

In judgments by agreement (stipulated) or uncontested: where there was a mistake made by one or both parties. You must file the request for order to set aside within 1 year after the entry of judgment.

Request for order to set aside a default judgment under the Servicemembers Civil Relief Act (SCRA). This applies when a default judgment is entered against someone in the military, active or within 60 days of ending his or her service. It allows the servicemember to file a request for order to reopen the case if being in the military had a significant effect on that person’s ability to participate in the case and the servicemember had a legal defense to the case. The servicemember must file the request for order to set aside within 90 days of ending his or her military service. Click to learn how to file a request for order to set aside. Click to learn how to respond to a request for order to set aside.

Request for order to set aside based on equitable relief. These types of request for order are based on the court’s power to ensure court orders are fair and the parties had a fair opportunity to participate in the case. These requests to set aside are hard to make and apply in very limited cases. Talk to a lawyer for more informatio or ask your court’s self-help center or family law facilitator to find out if they can help you.